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U.S. judge in Baltimore admonishes feds in fair-labor case

Saying the government cut corners, the chief judge of the U.S. District Court for Maryland admonished federal investigators Thursday for failing to properly authenticate purported affidavits of a Baltimore County restaurant’s kitchen and wait staff who he found were underpaid in violation of U.S. labor law.

Ruling in a pretrial motion, U.S. District Judge James K. Bredar said Mezcal Mexican Restaurant & Bar failed to pay servers minimum wage and kitchen staff appropriate overtime compensation under the Fair Labor Standards Act, or FLSA. But Bredar said a trial may be necessary to calculate the damages owed to the workers in light of the government’s failure to ensure their statements comported with the federal rules of evidence.

The judge, who presides in Baltimore, said he could not consider the workers’ statements because they lacked a clear declaration that they were true and were made under penalty of perjury, as the rules require.

“A bedrock presumption of our legal system is that the presence of certain words – words that assert the veracity of the statements made and accept the risk of a specific legal penalty for falsehoods – alert declarants to the gravity of their undertaking and thereby have a meaningful effect on truth-telling and reliability,” Bredar wrote in a memorandum opinion.

Attorneys for the U.S. Labor Department, which is pressing the FLSA claims against the restaurant, had argued in vain that the workers’ statements should nevertheless be admitted because they qualify as “business records” and thus are an exception to the authentication rule.

“The reasons for excluding (the employees’ statements) from consideration may appear technical, but exclusion is nonetheless warranted,” Bredar wrote. “The (labor) secretary bears the burden of proof in this case, a case in which the government seeks to wield its disproportionate enforcement powers against private citizens. The court will not make excuses for the government when it improperly cuts corners in the discharge of these powers.”

The judge added in a footnote that the labor secretary could resubmit the employees’ statements at trial, provided they are properly authenticated by then. Attorneys for the restaurant would be allowed to offer objections to the resubmission, he added.

Bredar issued his admonition in a summary judgment ruling that Mezcal, which has restaurants in Owings Mills and Lutherville, violated FLSA’s recordkeeping requirement regarding its hourly kitchen staff, failed to pay servers minimum wage, failed to pay overtime to servers and willfully failed to pay overtime to kitchen staff.

Mezcal has denied violating the FLSA, adding that it reasonably believed its payment practices complied with the law.

Still to be determined at trial is whether the restaurant willfully failed to pay servers minimum wage and for overtime; whether the secretary would be entitled to double damages for the alleged willful failure; and the amount of back pay owed to the kitchen and wait staff, Bredar stated in an order accompanying his memorandum opinion.

But the judge – in the parting words of his opinion — expressed hope that the case will not go to trial.

“In light of this ruling, the court expects the parties to request a settlement conference before a magistrate judge to avoid any unnecessary cost and uncertainty of a trial on the remaining questions,” Bredar wrote.

The case is R. Alexander Acosta, Secretary of Labor, v. Mezcal Inc. d/b/a Mezcal Mexican Restaurant & Bar et al., Civil No. JKB-17-1931.

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